Rhode,Island,Divorce,Lawyer,Ar law Rhode Island Divorce Lawyer Article: Debt and Divorce in RI

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Rhode Island has no specific statute related directly to assigning Marital Debt in a Rhode Island Divorce. Theoretically, issues concerning Marital Debt are determined under the RI Equitable Division Statute RIGL § 15-5-16.1 Assignment of property. This statute is set forth below.If the matter goes to a full trial on the merits, which is unlikely, the judge must rely on the equitable division statute 15-5-16.1 to determine assignment of assets as well as debt. Please contact a Rhode Island Divorce Lawyer / Attorney about your RI Divorce case. Article by RI Divorce Attorney David Slepkow (401-437-1100) All debt incurred by husband and wife during the Course of the marriage constitutes marital debt. Debt incurred prior to the marriage is the responsibility of the person who incurred the debt. Rhode Island Divorce Law ArticlesRhode Island Child Custody Law ArticlesHow is marital debt actually divided in Rhode Island Divorce? That is a very difficult and complicated question. There is no clear answer. The answer can only be determined by analytical reasoning. As a practical matter, assignment of marital debt is usually negotiated by the parties during the course of the divorce without the necessity of a trial. This article should be used for informational purposes only and not as a substitute for obtaining a Rhode Island Divorce lawyer.Rhode Island  (RI) Law ArticlesJudges tend to look at the following factors when determining assignment of marital debt: 1) The court looks at whether the debt was incurred in furtherance of the Marital Partnership. Marriage is a partnership. If the debt was used for home goods, groceries, clothes, family vacations, medical bills etc. then the Court is more likely to divide the debt equitably between the parties. If the debt was incurred by either husband or wife in furtherance of his or her own agenda then the debt is more likely to be assigned to the person who incurred the debt. For example, gambling debt, debt used in furtherance of an affair or unreasonable debt incurred without the consent of the other spouse is more likely to be assigned to the person who incurred the debt. This type of debt is theoretically "marital debt" although it is inequitable for the other spouse to have to pay. For example, gambling debt should be paid by the spouse who lost the money at the casino.Rhode Island Child Support Law Articles2) Who will have title and / or possession of the goods or items for which the debt was incurred? This is a significant factor. If the husband purchased a flat screen television on his Mastercard and he will get the flat screen then it is more likely that he will be assigned that debt.The person who is assigned the vehicle/ boat will usually be responsible for the debt which secures the automobile / car / boat.As far as real estate is concerned, the person who is assigned the real estate will usually be responsible to pay the mortgage, taxes and insurance for the property. This can get more complicated if a home equity line was used to purchase an asset which will be titled in the name of the spouse who is not assigned the real estate.Rhode Island Criminal Law Articles3.) What is the earning capacity, assets and ability of the parties to repay the debt? If one spouse has significantly higher income or earning capacity in the future then the other spouse then that spouse may be ordered to pay a larger share of the marital debt. This is a very practical determination since it makes no sense to assign debt to a person who cannot afford to repay it. Sometimes neither party can afford to repay the debt.In some cases the parties decide to file a Joint Bankruptcy Petition. In some Rhode Island divorce cases, one spouse files for Bankruptcy and the other does not file. The effect of Bankruptcy on Court orders and obligations in the property settlement agreement is beyond the scope of this article.There may also be a foreclosure of the marital real estate or the parties may agree to a short sale. Foreclosures and short sales are also beyond the scope of this article. Please consult with a Rhode Island Family Law Attorney or a RI Bankruptcy Attorney about these issues.4.) Who is at fault for the breakup of the marriage? If one spouse had an affair, abused alcohol or drugs or was physically abusive then that spouse may be ordered to pay a larger share of the debt. Cheating on your spouse could carry a penalty of being responsible for a larger share of the marital debt5.) Is the debt in the husband or wives name or is it joint debt? This is a very practical determination. Judges may be more likely to assign certain debt to a spouse who is the "obligor". (In that person's name) The justification for this is simple. The Obligor has an independent legal obligation to repay the third party creditor. If both parties have an equal amount of marital debt in their name then the easy answer may be assigning to each party the debt in their own name. If one spouse has a disproportionate amount of debt in their own name then the Court could order one party to make periodic payments towards the debt to the other. The Court could also order certain property to be sold and the debt paid.Joint debt is an even more perplexing issue. Joint debt means debt that both spouses owe the debt to a third party creditor. This is typically credit card debt, real estate mortgages, vehicle debt, store credit cards. If the Court assigns joint debt to one spouse, the other spouse must be vigilant to make sure that the debt is actually paid on a timely basis. Even though the Rhode Island Family Court may assign joint debt, this assignment does have any effect on the legal obligation of either spouse to repay the debt to the third party creditor. Credit Card companies such as Mastercard, Visa, Chase, Wells Fargo and American express do not care what some state Family court Judge orders. All they care about is whether they get their money back with interest. The person who signs a promissory note or debt agreement is responsible for that debt Vis a Vis the third party creditor. This obligation is irrespective of any Rhode Island (RI) Family Court order or property settlement Agreement.If one spouse is assigned certain debt and does not make payments or does not make payments on a timely basis then that conduct can wreak havoc on the other spouses credit rating. This is especially the case if failure to pay the debt results in foreclosure, lawsuits or repossession of the car/ automobile. If payments are not made pursuant to Court order or a property settlement agreement then the other spouse can seek relief in Court with a contempt motion or a motion to enforce the property settlement agreement.It makes little to no sense to assign debt to a spouse who has no income or ability to repay the debt because the assignment will actually harm the other spouse because their credit may be severely harmed.The Rhode Island Equitable division statute which pertains to debt is set forth below.Assignment of property in a divorce in Rhode Island§ 15-5-16.1 Assignment of property.(a) In addition to or in lieu of an order to pay spousal support made pursuant to a complaint for divorce, the court may assign to either the husband or wife a portion of the estate of the other. In determining the nature and value of the property, if any, to be assigned, the court after hearing the witnesses, if any, of each party shall consider the following: (1) The length of the marriage; (2) The conduct of the parties during the marriage; (3) The contribution of each of the parties during the marriage in the acquisition, preservation, or appreciation in value of their respective estates; (4) The contribution and services of either party as a homemaker; (5) The health and age of the parties; (6) The amount and sources of income of each of the parties; (7) The occupation and employability of each of the parties; (8) The opportunity of each party for future acquisition of capital assets and income; (9) The contribution by one party to the education, training, licensure, business, or increased earning power of the other; (10) The need of the custodial parent to occupy or own the marital residence and to use or own its household effects taking into account the best interests of the children of the marriage; (11) Either party's wasteful dissipation of assets or any transfer or encumbrance of assets made in contemplation of divorce without fair consideration; and (12) Any factor which the court shall expressly find to be just and proper. (b) The court may not assign property or an interest in property held in the name of one of the parties if the property was held by the party prior to the marriage, but may assign income which has been derived from the property during the term of the marriage, and the court may assign the appreciation of value from the date of the marriage of property or an interest in property which was held in the name of one party prior to the marriage which increased in value as a result of the efforts of either spouse during the marriage. The court also shall not assign property or an interest in property which has been transferred to one of the parties by inheritance before, during, or after the term of the marriage. The court shall not assign property or an interest in property which has been transferred to one of the parties by gift from a third party before, during, or after the term of the marriage. (c) The assignment of property, if any, to be made shall precede the award of alimony, since the needs of each party will be affected by the assignment of property, and once made in a final decree shall be final, subject only to any right of appeal which the parties may have. Any assignment made by the family court shall be regarded as a judgment for debt so that suit may be brought or execution may issue on the debt for the property due and undelivered, or the amount due and unpaid to be shown by affidavits of the person entitled to the property and the attorney of record of the person, the executions to run against the goods and chattels of the husband and wife, as the case may be; and the court may make all necessary orders and decrees concerning the suits or executions.Rhode Island Attorneys legal Notice per RI Rules of Professional Responsibility:The Rhode Island Supreme Court licenses all lawyers in the general practice of law, but does not license or certify any lawyer / attorney as an expert or specialist in any field of practice.Rhode Island Personal Injury Lawyer